How the Common Law Helped Unify and Liberate Colonial America, 1607– 1776
WILLIAM E. NELSON
1
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Library of Congress Cataloging-in-Publication Data
Names: Nelson, William E. (William Edward), 1940– author
Title: E Pluribus Unum : how the common law helped unify and liberate colonial America, 1607–1776 / William E. Nelson. Other titles: how the common law helped unify and liberate colonial America, 1607–1776
Description: Oxford [UK] ; New York, NY : Oxford University Press, [2019]
Identifiers: LCCN 2018017155 | ISBN 9780190880804 (hard cover) | ISBN 9780190880828 (epub)
Subjects: LCSH: Law—United States—History. | Common law—United States—History. | United States—History—Colonial period, ca. 1600–1775.
Classification: LCC KF361 .N45 2019 | DDC 349.7309/032—dc23 LC record available at https://lccn.loc.gov/2018017155
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Printed by Sheridan Books, Inc., United States of America
To my students
Acknowledgments ix
Introduction 1
CONTENTS
PART I THE INITIAL SETTLEMENTS, 1607– 1660
1. The Chesapeake 9
2. New England 24
3. New Netherland 43
PART II THE FORGING OF EMPIRE, 1660– 1750
4. The Crown’s Imposition of the Common Law and Colonial Resistance 57
5. The End of Resistance and the Triumph of the Common Law 72
6. Ready Acceptance of the Common Law: Pennsylvania, New Jersey, and the South 90
7. The Emergence of the Legal Profession 106
8. Property, Commercial Law, Labor Law, and Slavery 115
PART III ALTERING EMPIRE TO DEFEAT FRANCE, 1689– 1750
9. The Local Structure of Power 131
10. The Law of Religion 148
11. Criminal and Regulatory Law 160
PART IV THE COLLAPSE OF EMPIRE, 1750–
1776
12. The Well-Functioning Empire of the Mid-Eighteenth Century 175
13. Weakening the Bonds of Empire 195
14. Testing the Bonds of Empire 216
15. Severing the Ties of Empire 228
16. A Historian’s Postscript 246
Notes 249
Bibliography 261
Index 267
ACKNOWLEDGMENTS
I have dedicated this book, which is being published largely for student use, to my students, who have contributed so much to my life and my scholarship over the past half century of my teaching. Nearly ten of them have gone on to distinguished careers as academic legal historians and have produced important publications. Innumerable others have enjoyed successful careers as law professors in a wide variety of fields. Some have even served time (and I use these words advisedly) as law school deans. I thank my past students for all these contributions and trust that future students, who I unfortunately will not get to know as they read this book, will enjoy equal success.
As always I have accumulated many debts in writing this book. I am indebted to Cornelia Dayton and Jeremy Kessler, the readers for Oxford University Press, for their comments and suggestions as well as to Professor Thomas Mackey, who teaches legal history survey courses both to undergraduates and to law students at the University of Louisville and who read an early draft of the book and helped me try to make it suitable for both groups of potential readers. I am also indebted to numerous other historians who have written books, dissertations, and articles or published collections of archival material on which I relied in the four volumes of The Common Law in Colonial America (New York: Oxford University Press, 2008–17), of which this book is a summary; the works I used are referenced in the bibliography to this volume and in the extensive endnotes in the four volumes of The Common Law in Colonial America. Finally, I acknowledge the generous permission of law reviews and journals in which I pre-published various sections of the four volumes to reprint those sections; the specific articles are referenced in the acknowledgments to the four volumes and in the extensive endnotes. Readers searching for the most detailed available references should consult the footnotes in those articles.
I thank the Filomen D’Agostino and Max E. Greenberg Faculty Research Fund of New York University School of Law for its support and Deans John
Sexton, Richard Revesz, and Trevor Morrison for providing research leaves and funds for purchasing microfilm and for travel expenses. I acknowledge the invaluable research assistance of Ronald Brown, Elizabeth Evans, and Gretchen Feltes, all reference librarians at the New York University School of Law library, and of Jeffrey Mason, a now retired reference librarian at the Hewlett-Woodmere Public Library. Most of all, I thank all the members of the Legal History Colloquium for their multiple readings of the work underlying this book over the last fifteen years.
Finally, I need again to thank my wife, Elaine, and my children, Leila and Gregory, for their continued support.
Woodmere, New York December 2018
E Pluribus Unum
Introduction
The study of government and politics in colonial America has long been engulfed in obscurity. But government matters, and historians commit a grave mistake in ignoring its workings. One of the main duties of historical scholars is to teach people how government at times has worked to help them but at other times has done them harm. People need to understand how government can function both for and against their interests because when people lack such an understanding, they cannot make intelligent decisions about whom to place in positions of power.
Traditionally historians have studied the workings of American government by focusing on national politics. But that approach has left the profession without a paradigm for the colonial period, resulting in history without a narrative line. Colonial political historians typically have written about the many trees they encountered in doing their research, but they have not offered an appealing picture of the forest. Even as able a scholar as Woodrow Wilson went into his colonial history exam “crammed with one or two hundred dates and one or two thousand minute particulars about the quarrels of nobody knows who with an obscure Governor, about nobody knows what.” As Bernard Bailyn wrote half a century ago, historians of colonial America had at the time of his writing “touched on politics incidentally, and when they had, had conveyed to their readers only . . . [a] sense of triviality and boredom.”1
As a result, many colonial historians have turned over the past half century to writing intellectual and social rather than political history. Great books have been published on the ideological origins of the American Revolution, on the theology of Puritans, on New England dissent, on the Virginia gentry, on slavery, on issues of women and gender, and on numerous other matters. But the history of government—of the institutions through which power is channeled—has received less emphasis than it merits. This book seeks to explicate how government worked in continental British North America from 1607 to 1776.2 Its ultimate aim is to point future scholars toward analyzing how different structures of governance worked for the benefit of different individuals and different social
groups; regrettably this book cannot even begin to offer such a sociopolitical analysis. The limited aim of the volume is merely to offer a new narrative about colonial government by focusing on law and constitutional development and de-emphasizing politics. The hope is that the new narrative will open up new ways of thinking for at least some other scholars.
Four major themes will emerge in the course of the narrative. First is the theme of e pluribus unum. The thirteen American colonies that became the United States, like others of the more than twenty British Atlantic colonies, were founded by different groups—indeed, by different nations—for many different purposes. Because law reflects the societal conditions under which it operates, significant differences existed among the legal and governmental cultures of the early colonies. As Part I shows, Maryland and Massachusetts and the other New England colonies were founded for religious ends—as havens for victims of religious persecution or as models of political and religious rectitude. The religious purposes of these colonies profoundly influenced their early law. Maryland, for reasons that will be explained, quickly adopted the common law, whereas Massachusetts and the other New England colonies turned to the word of God as a foundation for much of their law.
New Netherland and Virginia, in contrast, were founded by trading companies. New Netherland, which succeeded as a mercantile outpost, adopted the Dutch law of its parent company. Virginia initially was governed by military law, but when it failed as a trading and exploration venture and turned to agricultural production of a staple crop, tobacco, it needed different law. Like neighboring Maryland, it turned to the common law, although somewhat more gradually. Thus, by the mid-seventeenth century, three different legal systems were in place along the North American east coast—the common law in the Chesapeake, Dutch law in New Netherland, and law having a biblical foundation in New England.
How did the law of these diverse colonies come together? Examination of the theme of how a common legal culture emerged out of the diversity of the initial settlements begins in Part II, where the second of four major themes—the theme of reception of the common law—also emerges. Much has been written about reception, but the writing has been driven by the perspective of lawyers. The focus has been on what parts of English law were received and what parts were not received. Legal writers have paid little attention to differences among the colonies in what law was received, to the temporal pace of reception, or to why reception occurred.
Part II takes a different approach. It begins with the restoration of Charles II to the English throne in 1660 and with the English conquest of New York in 1664. These two events created a problem for Charles. How could he govern his discrete colonies and turn them into a coherent empire when he lacked a
standing army, a bureaucracy, and money? The answer that he and James II, his brother and successor, developed was to use the legal profession, which brought the common law with it, as the mechanism of governance.
Part II examines the nearly century-long process by which the Crown imposed the legal profession and the common law on colonies that did not always want them. The imposition proved successful at least in part because of the common law’s amorphous nature. Did the common law comprise all of the law of England, including the rules of canon law and equity? Or did the common law consist only of the body of rules administered by King’s Bench, Common Pleas, and the Court of Exchequer? Were acts of Parliament included within the common law? Did the common law require its adherents to administer substantive rules of law, or was it merely a set of procedures adumbrated in various writs and forms of action? Over time some of these questions would be resolved. But in the late seventeenth and early eighteenth centuries, when authorities in England were demanding adherence to the common law, those authorities never defined precisely what law they were imposing. As a result, although every colony had to grant some degree of governance power to lawyers, each colony had a good deal of freedom as to what elements of the common law itself the colony accepted. Still, the process of reception in the end transformed radically diverse legal cultures into a coalescing, albeit variegated system—but a system in which lawyers had weighty influence everywhere.
Part III addresses the third theme of the volume—the unfolding and maturation of localism. As Part III shows, the Crown faced pushback to its efforts to impose common law, as many localities sought to govern themselves in their accustomed, diverse ways. After the Glorious Revolution of 1688–89, a new king, William III, and his successors, who needed colonial support for their wars against France, often yielded to these localist pressures, with the result that for some seventy years real power in the colonies lay mainly in local government. William III did, however, have one important goal that shaped local law—the encouragement of Protestant religiosity—and Part III examines how that goal affected colonial legal development.
It seems odd to twenty-first-century lawyers to conceive of the common law and the legal profession, as Charles II and James II did, as effective mechanisms of top-down governance. We are aware of a long history, going back at least as far as Sir Edward Coke, in which lawyers have opposed and prevented the imposition of executive policies. Part IV addresses how in the middle of the eighteenth century many members of the legal profession ceased serving as agents of royal government and instead became opponents of Parliament and the Crown. Part IV shows that these lawyers gradually developed a constitutional ideology empowering local judges and juries to determine the law’s directions, how that ideology matured into the doctrine of judicial review of the constitutionality of
legislation, and how by the time of independence in 1776 the American public had come to accept that doctrine. Ultimately Part IV suggests how courts and lawyers used the rule of law to amass substantial influence and power throughout the post-Revolutionary history of the American republic so as to check and balance government’s more democratic legislative and executive branches.
Several additional issues and themes emerge periodically in various segments of the book. One theme concerns the differences between Chesapeake and New England slavery; the focus is on why New England law recognized but Chesapeake law destroyed the humanity of slaves. Another recurrent theme is that until 1775 Britain governed its empire through informal accommodation and compromise, and that when Parliament in the Intolerable Acts actually exercised its claim of sovereignty, royal government collapsed. A third minor theme focuses on the role of colonial courts in facilitating debt collection, mainly through default judgments, and thereby preserving lines of credit, while a fourth focuses on the legal system’s efforts to regulate and stimulate colonial economies.
As noted above, a main theme of this book is that power in colonial America was intensely local. Of course, authorities in London—initially the king and his ministers and later the Crown in Parliament—possessed substantial power. But much power also lay in the colonies, where law was applied and administered. When the colonies were first settled in the seventeenth century, provincewide institutions governing a few square miles of territory mattered: provincial governors and legislatures made law for each colony as a whole. But once colonies grew and their populations spread out, power became fragmented, and local institutions— County Courts, Courts of Common Pleas, and Courts of General Sessions—took control. To understand colonial government, it is essential to study not just provincial legislatures but above all local institutions— that is, local courts. The study of government thus becomes the study of law, and legal understanding rather than efforts to synthesize colonial legislative politics becomes a potential basis for comprehending how colonial government worked.
This book, in sum, aims to offer one possible alternative to traditional political history as a means to understanding the workings of colonial government. I offer this alternative because I doubt that a persuasive narrative of colonial politics can ever be formulated. But a different narrative about colonial government is possible. That narrative, which forms the spine of this book, begins with a recounting of the diverse legal cultures of the early colonial settlements. It continues with the decision of the Crown to rely on the common law and its lawyers as instruments for creating and governing a coherent North American empire. It then shows how eighteenth-century Americans received the common law, but only on condition that it be administered locally to further local interests
and policies. Finally, the narrative ends by showing how lawyers grew independent of the Crown and transformed the common law from an instrument of Crown governance into constitutional arguments pointing toward the rule of law—arguments in support initially of local governance, later of American independence, and ultimately of restraint on the political branches of government.
PART I
THE INITIAL SETTLEMENTS
1607– 1660
The Chesapeake
Virginia
The English settlers who arrived in the Jamestown colony in 1607 brought with them a legal and political order radically different from the one under which Americans live today. They were not independent individuals but employees of the Virginia Company, the founder and governing entity of the colony. Planting and maintaining the colony required enormous and continuing investment, and thus whatever profits materialized had to be reserved for investors in England, whose continuing flow of cash was essential to keep the colony from extinction.
For this reason, the Virginia Company adopted three policies. First, it decided to retain ownership and total control of all assets, including all land, in Virginia. In 1613–14, the company did grant every settler a garden plot of three acres, but these grants did not reflect any change in the company’s governing economic vision. The grants were designed to alleviate shortages of food by encouraging the settlers to grow their own and thereby reduce the need for the company to import food from England. Second, the Virginia Company regulated all economic transactions minutely. Sir Thomas Dale’s Lawes Divine, Moral and Martial, the code promulgated in 1611, prohibited, for example, the selling of provisions at “unconscionable” prices;1 in particular it was unlawful for a man to buy something at one price and resell it at a higher one.
Third, with the profit motive and the motive of acquiring land unavailable as devices to induce settlers to labor, the Virginia Company turned to coercion to induce the workforce to work. It may have had little choice given the composition of Virginia’s early population, which consisted overwhelmingly of young men who were mostly impoverished, uneducated, and undisciplined. Worst of all, the young men who came to Virginia died at an appalling rate. The colony was, in fact, a death trap for most immigrants.
Such conditions did not encourage the men who populated Virginia either to work hard or to obey societal norms. Opportunities for misbehavior were abundant. Sloth was effortless. Beer, cider, and other alcoholic beverages calmed fears
and made hardships temporarily disappear. Opportunities for theft, particularly of company property such as pigs, which could be quickly consumed, were ever present. And why should young men not enjoy sexual pleasure, either with the few women who lived in the colony, with each other, or with animals?
For nearly everyone in early Virginia, life was barbarous, savage, and vulgar. Dale’s laws responded in a harsh fashion. The code imposed the death penalty for innumerable crimes; other punishments were whipping, galley service, tongue piercing, cutting off ears, and tying wrongdoers’ neck and heels together. More extraordinary was the substance of the laws. After making provision for divine worship and for crimes against religion, such as blasphemy, the code also addressed such offenses as treason, murder, sodomy, adultery, rape, and perjury, all of which were punishable by death, as were most forms of theft. Next, it provided punishment for anyone who disobeyed the commands of any public officer, who spoke against the king or royal authority, or who slandered the council of the colony resident in England or its agents resident in Virginia. The code also contained stringent public-health provisions, such as a requirement that everyone “keep his house sweet and clean.”2
Historians have disagreed about the significance to be attributed to Dale’s Lawes. One view is that the Lawes fit readily with antecedent English and Virginia legal traditions. Another possibility is that Dale’s laws were never enforced in Virginia. All we know for sure is that the code was published in England. Perhaps its main purpose was not to maintain order or to promote discipline on the ground but merely to reassure English investors that the Virginia Company was doing all that it could to secure labor from its workers. Nevertheless, the logic of Dale’s Lawes, which proclaimed that Virginia was organized on a corporate, military model rather than on a civilian, free-market one, directed the small group of Virginia Company officials who exercised judicial authority to decide disputes in ways that maximized the company’s power, not to do justice among the parties.
But Sir Thomas Dale’s draconian rules remained on the books for only seven years. Beginning in the late 1610s, change began to occur. What drove the change was a transformation of the colony’s economy from one based on trade and exploration to one based on the production of a staple crop, tobacco. Emergence of a tobacco-based economy affected Virginia’s legal system in two profound respects. The first was to localize jurisdiction and power. As the tobacco economy expanded, growers needed more and more land. In addition, because the cultivation of tobacco rapidly exhausts the soil and Virginians did nothing to replenish it, growers frequently moved their plantations to new locations. The resulting demand for land quickly dispersed settlement to locations increasingly distant from the colony’s center at Jamestown.
The original plan for Virginia was to give a General Court, consisting of the governor and council sitting in Jamestown, jurisdiction to adjudicate all disputes.
But the dispersal of settlement made it impractical for many litigants to come to Jamestown. To accommodate these litigants, county courts were created over the course of the 1620s and 1630s with original jurisdiction over many criminal and most civil cases, subject to a right of appeal to the General Court. However, in view of distances to Jamestown and of other expenses involved in taking appeals, many litigants did not bother to take that action; the result was that final adjudicatory jurisdiction often rested in the county courts. Because the General Court heard relatively few cases and the colonial government in Jamestown had no bureaucracy to enforce law locally, county courts quickly became the main source of government power.
The second impact of tobacco cultivation on Virginia law was privatization of the economy, which entailed the institutionalization of private property, adherence to the rule of law, and the development of mechanisms of credit and debt collection. Privatization began when the Virginia Company in 1616 offered fifty acres of land to anyone who had subscribed or would subscribe £12.10s to its funds. Then, in 1618 the company instituted what became the headright system, whereby anyone who transported himself or another to Virginia received fifty acres for every person transported. Finally, the company began issuing patents to groups of settlers who proposed to found entire communities.
With the arrival of a new governor, Sir George Yeardley, these early steps toward change became part of a package of reform that involved a wholesale transfer of power from the company directors in London to planters living in Virginia. Upon landing in April 1619, Yeardley issued a proclamation freeing all men who had resided for at least three years in the colony from working for the company and authorizing them to choose a dividend of land “to possess and plant upon.” It also confirmed the abrogation of Dale’s Lawes and provided for future government “by those free laws which his Majesty’s subjects live under in England.” Finally, Yeardley’s proclamation directed the calling of an assembly, the House of Burgesses, so that the inhabitants “might have a hand in the governing of themselves.”3 This distribution of property and commitment to selfgovernment under the laws of England had the obvious purpose of encouraging Englishmen to settle in Virginia.
The process of reform proceeded slowly, however, and did not lead immediately to a free-market, capitalist legal order. Even after the repeal of Dale’s Lawes, the Virginia Company, and later the royal government of Virginia, continued to regulate the economy extensively. For example, both the company and the subsequent royal government persisted in regulating prices and in forbidding most resales of goods at a higher price than the first purchaser had paid. Legislation also required landowners to plant specified amounts of corn.
Indeed, the most pervasive regulatory schemes were introduced after the Crown took control of the colony in the mid-1620s. For over a decade, the
House of Burgesses sought to prevent declines in the price of tobacco by limiting the amount individual planters could grow, setting minimum prices at which crops could be sold, and establishing markets in which sales were to take place. The Burgesses also sought to fix the charges of millers and prevent the export of scarce commodities such as corn and female cattle. The strictest regulation of all was put in place in 1626 by Governor Yeardley. It sought to deal with the problems that arose when a few individuals bought up all the commodities that people needed and then resold them at oligopoly prices. Under Yeardley’s regulation, the people of every locale selected a man who became known as the storekeeper of the common store; the storekeeper made all purchases for the locale but then was required to distribute goods to all people as equally as possible. Yeardley’s regulation proved unpopular, however, and the General Court suspended its operation.
Harsh, coercive mechanisms for maintaining public order and obtaining labor from settlers also remained in place even after 1618 when Dale’s Lawes ceased to be in force. In that year, for example, when some citizens of Bermuda Hundred went on strike and refused to perform assigned work tasks, the thengovernor imposed military discipline on the community. In 1619, the year in which the Virginia Company announced its reform package, the company also reaffirmed the spartan nature of the colony’s criminal justice system when it instructed the Governor and Council to appoint a master for anyone living in idleness and directed that drunkenness be punished severely, even by degrading the guilty individual to servile or bond status.
Why did the Virginia Company continue to engage in detailed economic regulation and to govern through harsh, coercive law even after proclaiming its 1619 reforms? In part, it acted out of habit rooted in long-standing English legal practices. The explanation also lies, however, in the inconsistency among the company’s post-1619 policies. On the one hand, the company sought to attract settlers by promising them profits and opportunities to better their lives by coming to Virginia. On the other hand, the company remained under an obligation to produce profits for its English investors. Maintaining the company’s investment lifeline, which had kept its colony afloat, required maintenance of conditions on the ground at war with the 1619 reforms. Hence the company proclaimed its reforms while also continuing frequently to follow its older, oppressive policies.
A liberal, free-market legal order based on private property, self-government, and the rule of law, at which the Virginia Company had hinted in its 1619 reforms, simply could not come into existence while the company retained control of the colony. But that control ended in 1624, when the Court of King’s Bench in London, pursuant to a suit brought by the Crown in the previous year, vacated the charter of the Virginia Company. The next year, on the death of
James I, his son and successor Charles I, incorporated Virginia into the royal demesne. Virginia thereupon became a royal colony, with a governor appointed by the Crown.
The revocation of the Virginia Company’s charter ultimately transformed the colony from one in which settlers were coerced into working for an absentee monopolist to one based on local self-government and rule under stable principles of law. This transformation was not, however, a Whigish one in which Virginians escaped from tyranny in search of freedom, liberty, and a constitution founded on the people’s consent. Tyranny, liberty, and consent are the wrong concepts through which to understand why the legal and political system of seventeenthcentury Virginia changed. Although some of the substantive law changes about to be addressed ultimately may have promoted liberty, there is no evidence that such was their purpose. Profit and the accumulation of wealth, not the attainment of liberty, were the highest aspirations of seventeenth-century Virginians and of the Englishmen who invested in Virginia. Those aspirations, and the need to facilitate the investment that would foster them, drove change in the colony’s political and legal system.
The Virginia Company, which had been set up to maximize the profits of English investors through exploration and trade, was always searching for a stroke of good luck, such as the discovery of some precious metal, to find a secure, profitable basis for the colony. But luck never materialized. Instead, tobacco saved the colony. At the outset of the seventeenth century, smoking was a luxury reserved for wealthy Europeans; no one could produce tobacco cheaply enough and in sufficient quantity to bring its price within reach of the masses. Virginia did.
Tobacco cultivation, however, was not a great help to the Virginia Company. It had never intended to engage in large-scale agricultural operations and lacked a bureaucracy capable of supervising sizable numbers of workers on widely dispersed plantations; independent, property-owning planters performed those tasks more efficiently. Thus, when it became plain in the mid-1620s that the company would neither profit from tobacco nor produce any return on its old investments, it lost the ability to raise further funds. Change then became essential. The revocation of the company’s charter, the institution of royal government, and the transformation of the colony’s legal system accordingly are best understood as analogous to a modern Chapter 11 bankruptcy reorganization that facilitated future investment from other sources, namely, independent planters in the colony and merchants and other individuals in England who were willing to lend the planters capital.
Once Virginia had been reorganized, its law changed to induce the planters and those with whom they dealt to stake their lives and fortunes on Virginia’s future. First, the ownership of land was privatized. Next, Virginia adopted the
